Miller v. Jones

71 S.E. 910, 136 Ga. 428, 1911 Ga. LEXIS 567

• Court: Supreme Court of Georgia
• Decided: June 17, 1911
• Status: Published

Opinion

Eish, C. J.

(After stating the foregoing facts.)

1. Upon the call of the appearance docket the judge may in his discretion allow counsel for the defendant a reasonable time thereafter and during the term, to demur and answer. There was no abuse of the judge’s discretion in this case in allowing counsel, for the reasons set out in the statement of facts, two days after the call of the appearance docket in which to demur and answer. In Deering Harvester Co. v. Thompson, 116 Ga. 418 (42 S. E. 772), the order held to be invalid allowed the defendant until a date after the adjournment of the appearance term within which to file an answer.”

2. The demurrer sustained by the court was that the petition was bad for multifariousness, because: (1) it sought an accounting with the executor, with which neither the other defendants nor any one of them had any connection or concern; (2) it prayed for an accounting with T. F. Jones Sr., as the surviving partner of a business conducted by him and the testator during the latter’s life, as well as for an accounting of business transactions T. F. Jones Sr. had with the testator, with neither of which accountings were any of the other defendants concerned; (3) it sought an accounting with and a contribution from “W. W. Beard, Emma Beard, and others, in reference to the indebtedness of the estate of W. D. Jones, 'and with such cause of action” the other defendants had no connection or concern; and (4) because “the only cause of action attempted to be set forth in said petition against W. B. Hattaway and C. J. Bambo is for an accounting and contribution in reference to the portion of the plantation known as the Dennis place^ and the petition shows on its face that these defendants acquired title to said land from T. F. Jones Sr., and have absolutely no connection or concern with or interest in any other of the matters or things or causes of action set forth in the petition.”

“To sustain a bill against the charge of multifariousness, it is not indispensable that all the parties should have an interest in all the matters contained in the suit. It is sufficient, if each party has an interest in some matter in the suit, which is common to all, and they are connected with others.” Worthy v. Johnson, 8 Ga. 236 (52 Am. D. 399). “Where-the plaintiffs have a common interest against all of the defendants in a suit as to one or more of the questions raised by it, so as to make them all necessary parties for the purpose of enforcing that common interest, the circumstance of some of the defendants being subject to distinct liabilities in respect to different branches of the subject-matter will not render the bill multifarious.” City Bank of Macon v. Bartlett, 71 Ga. 198. “Where all the complainants belonged to the same class and had a common interest, and all the defendants belonged to one class and were subject to a common liability, it does not matter that the extent of the rights of each of the complainants, or the liability of each of the defendants, may not be the same.” Ib. A petition is not multifarious though it concerns things of different natures against several defendants, whose rights are distinct, if it sets forth one connected interest among them all, centering in the point in issue in the case. Conley v. Buck, 100 Ga. 187 (28 S. E. 97); Greer v. Andrew, 133 Ga. 193 (65 S. E. 416). Did the petition in the case now in hand set forth a common interest which the plaintiffs had against all of the defendants as to any question raised, so as to make them all necessary parties for the purpose of enforcing that common interest? Before replying to this inquiry it becomes necessary to construe the will involved in this case. The natural and reasonable presumption is that a testator when he executes his will intends to dispose of his whole estate and does not intend to die intestate as to any part of his property, which presumption is overcome only where the intention of the testator to do otherwise is plain and unambiguous or is necessarily implied. Black v. Nolan, 132 Ga. 452 (64 S. E. 647). Moreover, it is clear, we think, from the will itself in this case, that the testator intended to dispose of his whole estate; for in the first item thereof he declares that “I wish that my entire estate, both real and personal, be held without division or disposition by my executor for the term of three years, that my just debts may be paid, and that my two daughters be maintained and educated from the proceeds, and that my home and family, Bob, and Jennie and Nannie Jones, be maintained and kept as they now are, except when attending school.” It is apparent that the testator desired his entire estate to be kept together for three years in order that his executor might discharge from the income thereof the debts against the estate, and from the same source defray the expenses of the maintenance and education of his two younger daughters, the plaintiffs, and the maintenance of his family, consisting of his three younger children, B. L. Jones and the plaintiffs, and also from the same source that the executor, as soon as it could “be conveniently done,” should pay to the testator’s widow a given sum in lieu of dower and a year’s support, 'as provided for in the second item of the will. The only property mentioned in and disposed of by the will was the interest of the testator in two places or plantations and the personalty on each and used in connection therewith. In one of these places, known as the home place, and in the personalty thereon the testator owned the entire interest, all of which at the end of three years was “to be the absolute estate” of his three children, B. L. Jones and the plaintiffs, who should then divide it amongst themselves. In the other lands, known as the Dennis place, and in the personalty thereon and used in connection therewith, the testator owned a half undivided interest. In reference to this property the testator declared in the fifth.item of his will as follows: “I desire at the end of three years that all my interest in the Dennis place, now operated by me and my brother Frank Jones, together with all personalty thereto, shall belong to W. D. Jones Jr., T. F. Jones Jr., and Emma Beard, which is to be divided as they desire.” It appears from the petition that the persons named in the fifth item were an older set of children of the testator, and that the persons named in the fourth item, to whom was given the home place and the personalty thereon, were the younger set of the testator’s children. After providing that his entire estate should be kept together fo-r the term of three years and that the income thereof should be devoted to certain specified purposes as already indicated, the testator declared in the third item of his will that “I desire that at the end of the three years mentioned, any money from my estate shall be divided equally between my son, E. L. Jones, and Jennie and Nannie Jones.” Construing the testamentary scheme as ascertained from the entire will and also the connection in which the language of the third item is used, and the language itself as there employed, we feel safe in saying that the intention of the testator was that at the end of three years “any money from [his] estate” — that is, any balance of the income, such as rents and profits belonging to the estate from the two plantations — should be equally divided between the three younger children named in the third item. At the end of the three years the corpus of the estate was to go to the children, the home place including the personalty thereon to the younger set and all the “interest” in the Dennis place, including all personalty thereon to the older set. The words “all my interest in the Dennis pláce” as used in the fifth item of the will referred, we think, not merely to his half undivided interest in the land constituting that place and to a like interest in the personalty thereon, but also included whatever interest he might have in the business enterprise conducted by himself and T. F. Jones Sr., as partners in connection with such place, and therefore covered any indebtedness in the way of profits,' wages, etc., owing by the partnership to the testator at the time of his degth.

Having set forth the real testamentary scheme of the will, does it follow that the plaintiffs under the allegations of their petition had a common interest as to some matter in the suit which was common to all of the defendants, and in which the latter were all interested in resisting? In our opinion the petition showed that the plaintiffs had such an interest. In effect, the plaintiffs alleged, that under the terms of the will they were to be maintained and educated out of the income from the entire estate during the period of three years after the testator’s death; that the executor failed to cany out this obligation placed upon him by the will; that he permitted the other defendants to go into possession of the land and personalty constituting the “interest” of the testator in the Dennis place, and to receive and appropriate to their own uses the income and profits of such property during the three years the executor was bound to hold the same together and to devote the income therefrom in part to the maintenance and education of the plaintiffs; and that at the expiration of the three years the plaintiffs were entitled to two thirds of any money that should then have been in the hands of the executor from the income of the Dennis place. Surely the plaintiffs had the right to call the executor to an accounting and settlement in reference to this matter, as well as to all other matters in respect to which they claimed he had mismanaged his trust; and if the other defendants had appropriated, with notice of the plaintiffs’ rights under the will, to their own uses any portion of the income belonging to the estate which should have come into the hands of the executor from the Dennis place during the three years after the death of the testator, and if the executor failed and refused to require the other defendants to account to him for such income appropriated by them, then the plaintiffs were entitled to bring an action against the other defendants for an accounting and settlement as to such income received and appropriated by them, and to make the executor a codefendant in such' action. Worthy v. Johnson, 8 Ga. 236 (52 Am. D. 399).

Moreover, as we have seen, the scheme of the will was that the entire estate should be kept together by the executor for the term of three years before the division thereof, as provided in the will, should be made, and in the meantime the debts of the testator, as well as the money to be paid to his widow and the expenses- of maintenance and education of the plaintiffs, should all be paid from the income derived from the entire estate. Of course all of the property of the estate was liable for the testator’s debts, and creditors with executions could proceed against any of it. If the executor failed to pay the debts owing by the estate from the income thereof,- and execution creditors had lands constituting a portion of the home place levied upon and sold to satisfy their debts, then the plaintiffs, to whom had been specifically devised a two-thirds interest in the lands of the home place, would have the right to require contribution from the devisees to whom had been specifically devised the testator’s “interest” in the lands constituting the Dennis place, as well as from those holding under such last named devisees with notice of the plaintiffs’ rights as to this matter. 2 Jarman on Wills (6th ed.), 2031; 37 Cyc. 392; 27 A. & E. Enc. Law, 251; Compton v. Pitman, 49 Ga. 612; Jones v. Sykes, 85 Ga. 546 (11 S. E. 664); Civil Code (1910), § 4588.

It was proper to have the alleged pro rata liability of each of the defendant devisees of the Dennis place and the defendants holding under them determined in one action. See Chamblee v. Atlanta Brewing & Ice Co., 131 Ga. 554 (62 S. E. 1032). As was well said by Mr. Justice Warner in the case of Nail v. Mobley, 9 Ga. 278, “It is the interest of parties, as well as the interest of the public, that all matters in controversy between them should be settled in one suit, when it can be done with safety and without great practical inconvenience.”

We have decided the only points necessary to dispose of the question as to whether or not the petition was multifarious, and with -confidence have arrived at the conclusion that it was not; and therefore the judgment of the lower court must be

Reversed.

All the Justices concur.